Sotomayor and Gorsuch Flag Constitutional Issues in Immigration Case

On Monday, the Supreme Court declined to hear the case Jesus Herrera-Salazar v. United States because the petitioner had already been removed from the country, rendering the matter moot. Despite denying review, Justices Sonia Sotomayor and Neil Gorsuch issued a separate note highlighting what they described as "serious constitutional problems" that "plague the government's treatment of Herrera-Salazar."

Background of the Case

Jesus Herrera-Salazar was indicted in 2020 for being "found in" the United States after a previous removal, a federal crime. He pleaded guilty, served a prison sentence, and was released under federal supervision. As a condition of his release, he was instructed not to leave the Eastern District of Oklahoma.

While under these restrictions, Herrera-Salazar was pulled over for a traffic violation and subsequently charged again with being unlawfully "found in" the United States. A jury convicted him, resulting in another prison term and supervised release. Herrera-Salazar argued that this second prosecution violated the Fifth Amendment's Double Jeopardy Clause, which protects individuals from being prosecuted twice for the same offense.

Legal Arguments and Lower Court Ruling

The Tenth Circuit Court of Appeals rejected Herrera-Salazar's argument, concluding that the two prosecutions could be treated as separate offenses under immigration statutes. The government maintained that the charges were distinct because he was "found in" the United States in 2020 and later "found in" Oklahoma, constituting two separate violations. Government lawyers also argued that ruling in favor of Herrera-Salazar could leave someone staying in the United States illegally "forever immune from punishment" unless they were removed and reentered the country.

Justices' Concerns

Sotomayor and Gorsuch questioned the lower court's conclusion, noting that Herrera-Salazar did not leave the country and reenter between the two prosecutions. They stated that treating the events as separate offenses was "difficult to square" with the Constitution's double jeopardy clause. The justices cited Brown v. Ohio, a precedent establishing that prosecutors cannot circumvent the Constitution by dividing a single crime into a series of different units. They argued that the original crime of being "found in" the United States could not have concluded until Herrera-Salazar left the country.

The justices also pointed out that the government's requirement for Herrera-Salazar to stay in Oklahoma created a legal paradox. "In the Government's eyes, whether Herrera-Salazar remained in the Eastern District of Oklahoma or left the United States, he would be breaking the law," the justices wrote. They warned that the Tenth Circuit's ruling could subject individuals to "limitless charges."

Why it matters

Although the Supreme Court did not issue a binding precedent due to the case being moot, the joint note from Justices Sotomayor and Gorsuch signals potential future scrutiny of how immigration statutes interact with the Double Jeopardy Clause. The justices urged lower courts to "avoid the constitutional absurdity" seen in this case and to give the double jeopardy clause its "full weight and meaning," suggesting that similar legal strategies by the government may face challenges in future litigation.

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Sources

• yahoo.com: Sotomayor, Gorsuch warn about "serious" problems with immigration case
• newsweek.com: Sotomayor, Gorsuch Warn About ‘Serious’ Problems With Immigration Case - Newsweek

This article was drafted with AI assistance and checked against the sources above. Company claims are reported as claims. Cover image is AI-generated.